Court of Appeals of Indiana | Memorandum Decision 19A-JC-545 | August 14, 2019 Page 1 of 5

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

R. Patrick Magrath

Alcorn Sage Schwartz & Magrath, LLP

Madison, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Frances Barrow

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of Ka.S., S.S., and 

Ch.I., Children Alleged to be 

Children In Need of Services;

K.S. (Mother), 

Appellant-Respondent, 

v. 

Indiana Department of Child 

Services, 

Appellee-Petitioner.

August 14, 2019

Court of Appeals Case No.

19A-JC-545 

Appeal from the Jackson Superior 

Court

The Honorable Bruce A. 

MacTavish, Judge

Trial Court Cause Nos. 

36D02-1805-JC-38 

36D02-1805-JC-39 

36D02-1805-JC-40 

Najam, Judge. 
Court of Appeals of Indiana | Memorandum Decision 19A-JC-545 | August 14, 2019 Page 2 of 5

Statement of the Case

[1] K.S. (“Mother”) appeals the trial court’s adjudication of her three minor 

children, Ka.S., S.S., and Ch.I. (collectively, “the Children”) as Children in 

Need of Services (“CHINS”). Mother raises a single issue for our review, 

namely, whether the trial court clearly erred when it adjudicated the Children to 

be CHINS after Mother had permitted Ch.I. (hereinafter, “the Child”) to fondle 

her breasts while she masturbated.

[2] We affirm.

Facts and Procedural History

[3] In May of 2018, C.I., the Child’s father (“Father”), spoke with Mother on his 

cell phone using a video-conferencing app. During that conversation, Mother

“started masturbating and asking [Father] to drop [his] custody case.” Aug. 29, 

2018, Tr. Vol. 2 at 9. While she was doing so, the Child “pull[ed] her shirt 

down, play[ed] with her nipples, [and] suck[ed] on her nipples.” Id. The Child 

was about twenty-three months old and, although he had been breastfed when 

he was younger, had been weened “for months” prior to the phone call. Id.

[4] Father recorded the phone call and surrendered the recording to the Indiana 

Department of Child Services (“DCS”) and local law enforcement. Thereafter, 

DCS filed its petition alleging the Children to be CHINS. Father testified to the 

court at an ensuing fact-finding hearing. Jennifer Eddings, a home-based 

family therapist, also testified at that hearing. According to Eddings, based on 

Mother’s alleged conduct with the Child, Mother’s participation in family 
Court of Appeals of Indiana | Memorandum Decision 19A-JC-545 | August 14, 2019 Page 3 of 5

therapy with Child’s siblings was “necessary for [the other two children] to be 

able to move forward,” but Mother refused to participate. Id. at 39. Eddings 

further testified that Mother’s refusal to participate was “detrimental” to the 

Child’s siblings. Id.

[5] Following that hearing, the court found as follows:

4. On May 17, 2018, [Father] recorded a video on his phone 

which depicted [Mother] masturbating while [the Child] played 

with and sucked on her nipples.

* * *

8. [Eddings] has attempted to engage Mother in therapy as 

she believes it is necessary for her to participate. Mother has thus 

far refused to engage in any therapy with Ms. Eddings.

Appellant’s App. Vol. 2 at 68. The court then adjudicated the Children to be 

CHINS. This appeal ensued.

Discussion and Decision

[6] Mother asserts that the trial court clearly erred when it adjudicated the Children 

to be CHINS. As our Supreme Court has explained:

In all CHINS proceedings, the State must prove by a 

preponderance of the evidence that a child is a CHINS as defined 

by the juvenile code. When reviewing a CHINS adjudication, 

we do not reweigh evidence or judge witness credibility and will 

reverse a determination only if the decision was clearly 

erroneous. A decision is clearly erroneous if the record facts do 
Court of Appeals of Indiana | Memorandum Decision 19A-JC-545 | August 14, 2019 Page 4 of 5

not support the findings or if it applies the wrong legal standard 

to properly found facts.

V.B. v. Ind. Dep’t of Child Servs., 124 N.E.3d 1201, 1208 (Ind. 2019) (citations 

and quotation marks omitted).

[7] Mother asserts that “[a] single incident of inappropriate behavior in the 

presence of the child is not sufficient to demonstrate the child is in need of 

services.” Appellant’s Br. at 11. She further asserts that “[t]here was no 

evidence that [the Child] or any other child was physically or mentally harmed 

by Mother’s actions.” Id. at 12. And she claims that DCS failed to prove that 

the coercive intervention of the court was necessary.1

[8] We reject Mother’s arguments. First, Mother cites no case law support for her 

categorical statement that “[a] single incident of inappropriate behavior” cannot 

support a CHINS adjudication. Id. While this Court may have reversed 

adjudications based on only a single incident of certain inappropriate behaviors, 

not all inappropriate behaviors are equally inappropriate. See A.M. v. Ind. Dep’t 

of Child Servs. (In re Ad.M.), 103 N.E.3d 709, 714-15 (Ind. Ct. App. 2018) (“the 

evidence in the instant case demonstrates that there was one incident of 

domestic violence between Mother and Father, that Mother and the Children 

have since moved away from Father, and that Mother has filed for a protective 

1

 Insofar as Mother asserts a failure by DCS to prove other circumstances that might have resulted in the 

adjudications here, such as her mental health or a failure to provide food, clothing, or shelter, we need not 

consider such arguments.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-545 | August 14, 2019 Page 5 of 5

order against him. Accordingly, DCS has not presented sufficient evidence to 

show that the single incident of domestic violence seriously endangered the 

Children.”). Mother has not carried her burden on appeal to show that the trial 

court’s judgment here, which is supported by the evidence, is contrary to law.

[9] We also reject Mother’s argument that DCS failed to demonstrate either that

the Children were harmed by Mother’s actions or that the coercive intervention 

of the court was necessary. Instead, we agree with DCS that “Mother’s 

criminally inappropriate conduct with [the Child] showed that she had 

problems that would benefit from therapy, and Mother’s refusal to do so 

endangered” each of the Children. Appellee’s Br. at 14. Indeed, Mother’s 

conduct, as demonstrated by Father’s testimony to the court, directly 

endangered Child. And her refusal to participate in home-based services, as 

demonstrated by Eddings’ testimony to the court, was “detrimental” to Child’s 

siblings. Aug. 28, 2018, Tr. Vol. 2 at 39. Thus, we cannot say that the 

undisputed evidence and the reasonable inferences therefrom demonstrate that 

the trial court erred when it adjudicated the Children to be CHINS. 

Accordingly, we affirm the trial court’s judgment.

[10] Affirmed.

Bailey, J., and May, J., concur.